Exhibit 10.36
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
AGREEMENT BETWEEN FIVECOM LLC AND E/PRO
ENGINEERING AND ENVIRONMENTAL CONSULTING
FOR THE
ADSS CABLE PROJECT
[**]
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS...................................................4
ARTICLE 2. CONTRACT DOCUMENTS............................................5
ARTICLE 3. SITE INVESTIGATION............................................7
ARTICLE 4. DIFFERING SITE CONDITIONS.....................................7
ARTICLE 5. SITE ACCESS AND RIGHTS OF WAY.................................8
ARTICLE 6. SURVEYS.......................................................8
ARTICLE 7. PROSECUTION OF THE WORK.......................................8
ARTICLE 8. MATERIALS, EQUIPMENT AND APPLIANCES...........................9
ARTICLE 9. LABOR AND SUPERVISION.........................................9
ARTICLE 10. ROYALTIES AND PATENTS........................................9
ARTICLE 11. PERMITS, LICENSES AND REGULATIONS...........................10
ARTICLE 12. INSPECTION OF WORK..........................................10
ARTICLE 13. WARRANTY....................................................11
ARTICLE 14. PAYMENTS....................................................11
ARTICLE 15. CHANGES.....................................................11
ARTICLE 16. EXTENSIONS OF TIME..........................................12
ARTICLE 17. CLAIMS......................................................13
ARTICLE 18. RIGHTS AND REMEDIES.........................................13
ARTICLE 19. TERMINATION.................................................14
ARTICLE 20. SUSPENSION OF WORK..........................................14
ARTICLE 21. COMPLETION AND ACCEPTANCE...................................15
2
ARTICLE 22. INDEPENDENT CONTRACTOR......................................16
ARTICLE 23. PROTECTION OF THE PUBLIC
AND OF WORK AND PROPERTY....................................16
ARTICLE 24. INSURANCE...................................................17
ARTICLE 25. ASSIGNMENT..................................................20
ARTICLE 26. This Article intentionally deleted..........................20
ARTICLE 27. SUBCONTRACTS................................................20
ARTICLE 28. This Article intentionally deleted..........................20
ARTICLE 29. ARBITRATION.................................................20
ARTICLE 30. GOVERNING LAW...............................................21
ARTICLE 31. NOTICE......................................................21
ARTICLE 32. MISCELLANEOUS PROVISIONS....................................21
3
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
THIS AGREEMENT (the "Contract") is entered into this 17th day of January
1997, between FiveCom, LLC, a Massachusetts Limited Liability Company ("Owners")
and CMP International Consultants a Maine Corporation d/b/a E/PRO Engineering
and Environmental Consulting "Contractor", in connection with that work of
Improvement known as the FiveCom of Maine Project to be constructed for Owner on
a [**].
The Owner wishes to engage the Contractor to perform the Work, as defined below,
on the terms and conditions set forth in the Contract Documents, as defined
below.
NOW, THEREFORE, the parties agree as follows:
A. The Contractor shall perform the Work in compliance with the Contract
Documents, which consist of this Contract (including the General Conditions),
the attached Schedules, and any supplementary, special or other conditions
drawings, specifications, all addenda issued prior to the execution of this
Contract, and all change orders, modifications, and amendments issued after
execution of this Contract. The Contract Documents are specifically enumerated
in the attached Schedule A.
B. The Contractor shall supply all labor, equipment and supervision necessary to
complete all of the work described in the attached Schedule B (the "Work").
C. The Work shall be commenced and completed according to the Project Schedule
attached as Schedule C, subject to such extensions and modifications as are made
pursuant to the Contract Documents.
D. The Owner shall pay the Contractor in current funds for the performance of
Work, subject to additions and deductions as provided in the Contract Documents
the Estimated Contract Price of [**]more fully described in attached Schedule D.
All provisions regarding liquidated damages are fully set forth in Schedule D.
4
GENERAL CONDITIONS
------------------
ARTICLE 1. DEFINITIONS
In this Contract, the following definitions shall apply:
1.1 ADSS Cable-All Dielectric Self Supported Cable, the type of cable specified
for the project.
1.2 Contract - The signed agreement (i.e., this document) between the Owner and
the Contractor that is a part of the Contract Documents.
1.3 Contract Documents - As defined in Paragraph 2.1.
1.4 Contractor - The person, partnership or corporation signatory to the
Contract who is to perform the Work in accordance with the Contract Documents.
1.5 Contract Price - The total estimated compensation to be paid to the
Contractor for the performance of the Work, as may be amended during the course
of performance of the Work.
1.6 Contract Time - The number of calendar days as set forth in the Contract, as
may be amended by the Contract Documents, during which Substantial Completion of
the Work must be achieved.
1.7 Final Completion - The completion of the Work, including the submission of
all final releases, documents and manuals required by the Contract Documents.
1.8 Owner - FiveCom LLC or its authorized representative designated by the Owner
in writing, on whose authority, acts, and instructions the Contractor may rely,
unless otherwise limited in writing by the Owner.
1.9 Project - The facility or structure(s) to be constructed as part of the
Work.
1.10 Subcontractor - Any person, partnership or corporation which has a contract
with the Contractor to furnish labor, material or equipment as part of the Work.
1.11 Substantial Completion - The point in the progress of the Work when the
Owner may use the Project for the purpose intended.
1.12 Work - The total of the Contractor's responsibilities as set forth in the
Contract Documents, including but not limited to the construction of the
Project.
5
ARTICLE 2. CONTRACT DOCUMENTS
2.1 The Contract Documents shall consist of those documents, set forth in
Schedule A attached to this Contract, and all change orders, modifications and
amendments issued after execution of this Contract.
2.2 The following rules, in addition to those generally applicable to contracts,
shall govern the interpretation of the Contract:
2.2.1 The Contract Documents are complementary and what is required by any
document shall be as binding as if required by all.
2.2.2 The supremacy of documents is:
a. A document with a more recent date
b. This contract
c. Specifications
d. Drawings
2.2.3 Materials or work described in words which, so applied, have a well
known technical or trace meaning, shall be held to refer to such recognized
standards.
2.3 The responsibility for design, drawings, specifications and submittals shall
be as follows:
2.3.1 The Owner shall be responsible for the adequacy of design and
sufficiency of the drawings and specifications.
2.3.2 The Owner shall furnish drawings and specifications which adequately
represent the requirements of the Work. All such drawings and instructions shall
be consistent with the Contract Documents and shall be true developments of
them. Unless otherwise provided, the Contractor will be furnished free of charge
all copies of drawings and specifications reasonably necessary for the execution
of the Work.
2.3.3 All drawings and specifications furnished to the Contractor are the
property of Owner and shall not be reused on other work. With the exception of
one document set, all sets are to be returned to the Owner at the completion of
the Work.
2.3.4 If the Contractor, in the course of the Work, finds any discrepancy
between the drawings and the physical conditions of the locality, or any errors
or omissions in drawings or in the layout as, given by survey points and
instructions, he shall promptly inform the Owner in writing, and the Owner shall
promptly verify the
6
same. Any work done after such discovery, except authorized, shall be done at
the Contractor's risk.
2.3.5 All shop drawings, submittals and other documents furnished by the
Contractor or its Subcontractors become Owner's property.
2.3.6 The Contractor shall furnish to the Owner all shop drawings,
submittals and other documents required by the Contract Documents in sufficient
time to permit review and approval by the Owner. The Owner shall return such
documents to the Contractor within a reasonable time, and in no event later than
required in order to avoid delays in the Work, either approved or with such
other notation, including correction and resubmittal, as may be required under
the circumstances. Further resubmittals and subsequent reviews and approvals
shall be made promptly.
ARTICLE 3. SITE INVESTIGATION
3.1 The Owner has made known to the Contractor, prior to the receipt of bids,
all information of which it is aware as to surface and subsurface conditions in
the vicinity of the Work.
3.2 The Contractor has satisfied itself as to the nature and location of the
Work the character of equipment and facilities needed preliminary to and during
the prosecution of the Work, the general and local conditions, and other matters
which can reasonably be expected to affect the Work under this Contract.
ARTICLE 4. DIFFERING SITE CONDITIONS
4.1 The Contractor shall promptly, before such conditions are disturbed, notify
the Owner in writing of:
4.1.1 Subsurface or latent physical conditions at the site differing
materially from those indicated in the Contract Documents; or
4.1.2 Previously unknown physical or other conditions at the site of an
unusual nature, differing materially from those ordinarily encountered and
generally recognized as inherent in work of the character provided for in this
Contract.
4.2 The Owner shall promptly investigate the conditions and, if it finds that
such conditions do so materially differ and cause an increase or decrease in the
cost of, or the time required for performance of this Contract, an equitable
adjustment in the Contract Price and the Contract Time shall be made. Any claim
of the Contractor for adjustment shall not be allowed unless he has given prompt
notice of such event;
7
provided however, that the Owner may, if it determines that the facts so
justify, consider and adjust any such claims that are later asserted before the
date of final settlement of the Contract.
4.3 The discovery of hazardous material, not specifically identified in the
Contract Documents with respect to its location and quantity shall be deemed to
be a differing site condition pursuant to this article. Hazardous material is
defined as PCB's, asbestos, or any other material, removal of which is governed
by the doctrine of strict liability under federal or Maine law. If hazardous
material is discovered:
4.3.1 The Contractor shall immediately (a) give notice to the Owner of such
discovery; (b) stop that portion of the Work affected by such material; and (c)
sufficiently protect the work to prevent exposure of persons to such material.
4.3.2 The Contractor shall have no obligation to perform any corrective or
remedial work that would require the handling of or exposure to hazardous
material. Contractor will advise Owner on appropriate action in order to proceed
with this Work:
(a) Based on the time for corrective or other action required, an
equitable adjustment in the Contract Price and the Contract Time shall be made
for such work.
4.4 The Owner shall have the sole responsibility for furnishing all written
warnings, notices or postings required by state or federal law regarding the use
or existence of hazardous or potentially hazardous substances.
ARTICLE 5. SITE ACCESS AND RIGHTS OF WAY
5.1 The Owner shall provide. no later than the date when needed by the
Contractor the lands upon which the Work is to be performed, including
convenient access to the lands and any other lands designated in the Contract
Documents for use by the Contractor. Any delay in the furnishing of these lands
shall entitle the Contractor to an equitable adjustment in the Contract Price
and the Contract Time.
5.2 The Contractor shall provide at its own expense any additional land excess
of that provided by the Owner that it may require.
ARTICLE 6. SURVEYS
In addition to the information required to have been furnished by the Owner
pursuant to Article 3, the Owner shall furnish for the Work all necessary
surveys and
8
reports describing the physical characteristics, soil, geological and subsurface
conditions, legal limitations, utility locations and legal description. The
Owner shall establish such land surveys and baselines so that the Contractor may
locate the principal parts of the Work and perform such detailed surveys to
perform the Work. The Contractor shall preserve all bench marks and reference
points established by the Owner and shall be responsible to restore them due to
any destruction caused by the Contractor's operations.
ARTICLE 7. PROSECUTION OF THE WORK
7.1 Within fourteen days (14) after award of the Contract, the Contractor shall
prepare and submit to the Owner an estimated progress schedule indicating the
starting and completion dates for the various stages of the Work and the
sequence of construction. Thereafter, the Contractor shall submit weekly updates
of the schedule reflecting any changes in such dates or sequence.
7.2 The Contractor shall diligently prosecute the Work in order to achieve
Substantial Completion within the Contract Time.
7.3 The Contractor shall achieve Final Completion as promptly as practicable
after Substantial Completion.
7.4 The Contractor shall, at its own expense, keep the site of the Work free
from accumulation of rubbish and waste materials; upon completion of the Work,
it shall remove all rubbish waste materials, temporary structures, equipment and
surplus materials.
ARTICLE 8. MATERIALS, EQUIPMENT AND APPLIANCES
8.1 Unless otherwise provided by the Contract. the Contractor shall provide and
pay the cost, including taxes, for all labor, equipment, tools, transportation
and all other services and facilities necessary for the execution and completion
of the Work.
8.2 Unless otherwise specified, all materials incorporated in the Work shall be
new and both workmanship and material shall be of good quality. The Contractor
shall, if required, furnish satisfactory evidence as to the kind and quality of
materials.
ARTICLE 9. LABOR AND SUPERVISION
9.1 The Contractor shall at all times maintain good discipline and order among
its employees. It shall provide competent, suitably qualified personnel to
perform the
9
work assigned to them.
9.2 The Contractor shall employ on the site of the Work a competent
superintendent and such necessary assistants to represent the Contractor and
receive communications for the Contractor from the Owner. Important
communications shall be confirmed by the Owner in writing; otherwise, written
confirmation shall be made upon request.
ARTICLE 10. ROYALTIES AND PATENTS
The Contractor shall pay all royalties and license fees and shall defend the
Owner against all suits and claims and save harmless the Owner from all damages
arising from infringement of any patent rights connected with the Work. However,
the Contractor shall not be responsible if such infringement arises from the use
of a particular process or product specified by the Owner unless the Contract
identified such process or product as being patented.
ARTICLE 11. PERMITS, LICENSES AND REGULATIONS
11.1 Permits and licenses of a temporary nature necessary for the prosecution of
the Work shall be obtained and paid for by the Owner. The Owner shall assist the
Contractor in obtaining such permits and licenses when requested to do so.
Unless otherwise provided, permits, licenses and easements for permanent
structures or permanent in existing facilities shall be secured and paid for by
the Owner.
11.2 The Contractor shall give all notices and comply with all laws, ordinances.
rules and regulations bearing on the performance of the Work in effect at the
time of contract signing. Any subsequent change in law which affects Contractor
performance of the work, shall entitle Contractor to an equitable adjustment in
the contract price and contract time. If the Contractor observes that the
drawings and specifications are at variance with such laws, ordinances, rules
and regulations, the Owner shall promptly be notified. Any necessary changes in
the Work as a result of such variance will entitle the Contractor to an
equitable adjustment in the Contract Price and the Contract Time.
ARTICLE 12. INSPECTION OF WORK
12.1 The Owner shall provide sufficient competent personnel to visit and inspect
the site during the course of the Work to determine in general whether the Work
is being performed in a manner which is consistent with the Contract Documents.
Notwithstanding such Inspection, the Contractor will be held responsible for the
10
acceptability of the finished Work, and defective work shall be corrected.
12.2 The Owner and its representatives shall at all times have access to the
Work whenever it is in preparation or progress, and the Contractor shall provide
proper facilities for such access and for inspection.
12.3 If the specifications, laws, ordinances, or any public authority require
any work to be specifically tested or approved, the Contractor shall give the
Owner timely notice of its readiness for inspection and of the date fixed for
such inspection. Inspections by the Owner shall be made promptly, and, where
practicable, at the source of supply. If any work should be covered up without
approval or consent of the Owner, it must, if required by the Owner, be
uncovered for examination and properly restored at the Contractor's expense,
unless the Owner has unreasonably delayed inspection.
12.4 If a portion of the Work has been covered which the Owner has not
specifically requested to observe prior to its being covered, the Owner may
request to see such work and it shall be uncovered by the Contractor. If such
work is in accordance with the Contract Documents, costs of uncovering and
replacement shall, by appropriate change pursuant to Article 15, be charged to
the Owner. If such work is not in accordance with the Contract Documents, the
Contractor shall pay such costs unless the condition was caused by the Owner or
a separate contractor, in which event the Owner shall be responsible for payment
of such costs.
ARTICLE 13. WARRANTY
13.1 The Contractor warrants to the Owner that the Work will be performed in
accordance with the Contract.
13.2 Prompt written notice of all defects in the Work shall be given to the
Contractor within one year of Substantial Completion. The Contractor shall at
its sole cost promptly make the necessary corrections, including the repair of
any work damaged in making such corrections. However, the Owner may accept any
defective work and agree with the Contractor on an appropriate adjustment in
payment.
ARTICLE 14. PAYMENTS
14.1 The Owner shall pay to the Contractor the Contract Price, as may be amended
pursuant to Article 15, as full compensation for the Work.
14.2 Periodically, but not less frequently than monthly, the Owner shall pay the
Contractor for the value of the work performed less the amount of previous
11
payments and any payments or portions thereof that are in dispute. Disputed
payments will be resolved in accordance with Article 29. Payment shall be made
within ten (10) working days after submission of a properly documented
requisition.
14.3 The Contractor agrees that all work, materials and equipment covered by an
application for payment will pass to the Owner free and clear of all liens,
claims, security interests or encumbrances upon payment by the Owner. At the
request of the Owner, the Contractor shall provide waivers and lien releases
from all persons who may be potential lien claimants as a prerequisite to the
Owner's obligation to disburse progress and final payments.
14.4 This Article intentionally omitted.
14.5 Upon Final Completion and acceptance of the Work, the Owner shall pay the
Contractor all amounts remaining to be paid under the Contract, less any amounts
the Owner is entitled to retain under the other provisions of this Contract.
ARTICLE 15. CHANGES
15.1 The Work shall be subject to change by additions, deletions or revisions by
Owner. The Contractor will be notified of such changes by receipt of additional
and/or revised drawings, specifications, exhibits or written orders.
15.2 Whenever an equitable adjustment in the Contract Price or the Contract Time
is provided for under the Contract Documents, or if the Owner has notified the
Contractor of a change, the Contractor shall submit to the Owner within a
reasonable time a detailed estimate together with any adjustments in the
schedule reflecting any changes in the Contract Price and the Contract Time.
Pricing shall be in accordance with the pricing structure of this Contract;
however, to the extent that such pricing is inapplicable, the cost of the change
or the amount of the adjustment shall be determined on the basis of cost to the
Contractor (except in the case of Contractor-owned equipment rates) plus
reasonable amounts for overhead and profit.
15.3 The Contractor shall not perform changes in the Work in accordance with
Paragraphs 15.1 and 15.2 (until the Owner has approved in writing the changes in
the Contract Price and Contract Time, except as set forth in Paragraph 15.4
below.) Upon receiving such written approval from the Owner, the Contractor
shall diligently perform the change in strict accordance with this Contract.
12
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
15.4 Notwithstanding Paragraph 15.3, the Owner may expressly authorize the
Contractor in writing to perform the change prior to approval of price and
schedule adjustments by the Owner. The Contractor shall not suspend performance
of this Contract during the review and negotiation of any change, except as may
be directed by the Owner pursuant to Article 20, so long as the change is a
reasonably foreseeable alteration to the Work originally contemplated by the
Contract Documents. In the event the Owner and the Contractor are unable to
reach agreement on changes in the Contract Price and the Contract Time, the
matter shall be resolved in accordance with Article 17.
ARTICLE 16. EXTENSIONS OF TIME
16.1 The Contract Time shall be extended as necessary to compensate for delay in
the progress of the Work resulting from changes in the Work authorized by Owner,
suspension of the Work (in whole or in part) by the Owner, any other act or
omission by the Owner or its employees, agents or representatives contrary to
the provisions of the Contract or by another contractor employed by the Owner,
or any other cause which could not have been reasonably foreseen, or which is
beyond the control of the Contractor, its subcontractors, and which is not the
result of their sole fault or sole negligence, including, but not restricted to,
acts of any governmental authority, acts of a public enemy, acts of God, fire,
unusual delay in transportation, abnormal weather, conditions, or labor disputes
(including strikes), and Owner's inability to secure applicable permits and
licenses.
16.2 The Contractor shall give to the Owner notice of any delay within five (5)
calendar days of the occurrence or commencement of a cause of delay. Failure to
give notice of any delay within a reasonable time shall constitute a waiver by
the Contractor of any claim for extension of the Contract Time resulting from
that cause of delay. The Contractor's notice shall include an estimate of the
probable effect of the cause of delay on the progress of the Work.
16.3 With respect to any delay resulting from any act or neglect by the Owner or
its employees, agents or representatives or by another contractor employed by
the Owner, and which delay is not otherwise specifically provided for in the
Contract Documents, the Contractor may recover from the Owner any damages
incurred as a result of such delay in accordance with Article 15.
16.4 With respect to any delay resulting from the fault or neglect of the
Contractor, any Subcontractor, or those under the control of either, the
Contractor shall pay to the Owner the sum specified in the attached Schedule D
[**] not as a penalty, but as liquidated damages, since the actual damages for
such delay are uncertain and would
13
be impracticable or extremely difficult to ascertain.
ARTICLE 17. CLAIMS
17.1 Subject to the provisions of Article 15, the Contractor shall give to the
Owner written notice within a reasonable time after the happening of any event
which the Contractor believes may give rise to a claim for an equitable
adjustment in the Contract Price or the Contract Time. Within a reasonable time
after the happening of such event, the Contractor shall supply the Owner with a
statement supporting such claim, which statement shall include a detailed
estimate of the change in the Contract Price and the Contract Time. If requested
by the Owner in writing, the Contractor shall provide reasonable documentation
to substantiate its claim. The Contractor agrees to continue performance of the
Work during the time any claim is pending, so long as the work requested is a
reasonably foreseeable addition to the work originally contemplated in the
Contract Documents. The Owner shall not be bound to any adjustments in the
Contract Price or the Contract Time unless expressly agreed to by the Owner in
writing. No claim shall be allowed if asserted after final payment under this
Contract.
17.2 Claims by either party for damages due to injury or damage to person or
property or for delay, interference, suspension or interruption of work or for
any other damage shall be made in writing to the other party within a reasonable
time after the happening of such event or the first observance of such cause for
damage.
ARTICLE 18. RIGHTS AND REMEDIES
18.1 The duties, obligations, rights and remedies in these Contract Documents
shall be cumulative, in addition to, and not a limitation of, any duties,
obligations, rights and remedies otherwise imposed or available by law, unless
otherwise indicated.
18.2 No action or failure to act by the Owner or Contractor shall constitute a
waiver of any right or duty afforded any of them under the Contract, nor shall
any such action or failure to act constitute an approval of, or acquiescence in,
any breach, except as may be specifically agreed in writing or specified in the
Contract.
14
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
ARTICLE 19. TERMINATION
19.1 Should the Owner become insolvent or commit a material breach or default
under the Contract, including, but not limited to, failure to pay timely
undisputed sums due to the Contractor, and fail to act in good faith to remedy
the same within ten (10) days after notice from the Contractor, then the
Contractor may terminate this Contract. The Contractor shall be entitled to all
damages incurred as a result of such termination.
19.2 Should the Contractor become insolvent, or should the Contractor refuse or
neglect to supply a sufficient number of properly skilled walkmen or tools
within the Contractor's control, or should the Contractor commit a substantial
breach of this Contract and should the Contractor fail to act in good faith to
remedy such within ten (10) days after written demand by the Owner, the Owner
may terminate this Contract. Upon any such termination, the Contractor shall be
compensated for all costs incurred for that portion of the Work then performed.
The Contractor shall be liable for any costs incurred by the Owner in completing
the Contract in excess of the difference between the Contract Price and the
amount paid to the contractor to the date of termination.
19.3 The Owner reserves the right to terminate the Work for its convenience upon
notice in writing to the Contractor. In such event, the Contractor shall be paid
its actual costs for that portion of the Work performed to the Date of
termination and for all costs of termination, including demobilization and any
termination charges by vendors and subcontractors, [**] of all such costs for
overhead and profit. If, for any reason, within six (6) months of the actual
date of cessation of work the Owner elects to resume the Work, using another
contractor, the Contractor shall be entitled to payment of its actual profits
for performance of all of the Work.
19.4 In the event the Contractor's insurance shall lapse, this Contract shall
immediately be suspended for three (3) days to allow the Contractor to reinstate
insurance coverage. No schedule extension shall be allowed for this event.
ARTICLE 20. SUSPENSION OF WORK
20.1 The Owner may at any time by notice to the Contractor suspend further
performance of all or any portion of the Work by the Contractor. The notice
shall specify the date and the estimated duration of the suspension. Any
suspension shall not exceed forty-five (45) consecutive calendar days nor shall
the total of all
15
suspensions exceed ninety (90) calendar days. Upon receiving any such notice,
the Contractor shall promptly suspend further performance of the Work to the
extent specified in the notice, and during the period of such suspension shall
properly care for and protect all work in progress and equipment that the
Contractor has on hand for performance of the Work. The Owner may at any time
withdraw the suspension of performance of the Work as to all or part of the
suspended work by notice to the Contractor specifying the effective date and
scope of withdrawal, and the Contractor shall resume diligent performance of the
Work for which the suspension is withdrawn, as soon thereafter as is reasonably
- possible and the Contract time shall be extended day for day for the length of
suspension duration.
20.2 Unless suspension pursuant to this section is caused by the default of the
Contractor or any of the provisions of the Contract Documents, the Contractor
shall be entitled to recover from the Owner any damages as a result of any
suspension in accordance with Article 15.
20.3 If any suspension not caused by the default of the Contractor exceeds the
time periods set forth in Paragraph 20.1, the Contractor may at its option
terminate this Contract in accordance with Paragraph 19.3.
ARTICLE 21. COMPLETION AND ACCEPTANCE
21.1 The Contractor shall be responsible for the Work until Final Completion,
except for any part of the Work partially accepted as set forth below in
Paragraph 21.5.
21.2 The Contractor shall notify the Owner upon Substantial Completion of the
Work. The Owner shall promptly verify whether Substantial Completion has
occurred. If not, the Owner shall promptly state in writing to the Contractor
what must be done to achieve Substantial Completion. This procedure shall be
repeated until Substantial Completion has been achieved. Payment to the
Contractor for achieving Substantial Completion shall be made in accordance with
Paragraph 14.4.
21.3 The Contractor shall notify the Owner upon Final Completion of the Work.
The Owner shall promptly verify whether Final Completion has occurred. If not,
the Owner shall promptly state in writing to the Contractor what must be done to
achieve Final Completion. This procedure shall be repeated until Final
Completion has been achieved. Payment to the Contractor for achieving Final
Completion shall be made in accordance with Paragraph 14.5.
21.4 If at any time prior to the issuance of the certificate of
Substantial Completion, any portion of the permanent construction has been
satisfactorily completed, and if the Owner determines that such portion of the
permanent construction is not
16
required for the operations of the Contractor, the Owner shall issue to the
contractor a certificate of partial completion, and the Owner may take over and
use the portion of the permanent construction described in such certificate.
21.5 The issuance of a certificate of partial completion shall not operate to
release the Contractor from any obligations under this Contract, but shall
determine the beginning date of any warranties solely applicable to the
completed portion. Upon such issuance the Owner shall be responsible for all
maintenance, utilities, insurance and other similar expenses with respect to
such use. If such prior use increases the cost of or delays the Work, the
Contractor shall be entitled to an increase in the Contract Price of the
Contract Time, or both.
ARTICLE 22. INDEPENDENT CONTRACTOR
22.1 The Contractor, its employees, subcontractors and those under its control
shall perform all Work as independent contractors, and shall not be deemed to be
the employees or agents of the Owner for any purpose whatsoever.
22.2 This Contract is not intended to create nor shall it be construed to create
any partnership, joint venture, employment or agency relationship between
Contractor and Owner, and no party hereto shall be liable for the payment or
performance of any debts obligations, or liabilities of the other party, unless
expressly assumed in writing herein or otherwise. Each party retains full
control over the employment, direction, compensation and discharge of its
employees, and will be solely responsible for all compensation of such
employees, including social security, withholding and worker's compensation
responsibilities.
ARTICLE 23. PROTECTION OF THE PUBLIC AND OF WORK AND PROPERTY
23.1 The Contractor shall be responsible for initiating, maintaining, and
supervising all safety precautions and programs in connection with the Work.
23.2 The Contractor shall take all reasonable precautions for the safety of, and
shall provide all reasonable protection to prevent damage, injury or loss to:
a. all employees on the Work and all other persons who may be affected;
b. all the Work and its materials and equipment;
c. other property at or adjacent to the site of the Work.
23.3 The Contractor shall give all notices and comply with all applicable laws,
ordinances, rules, regulations and lawful orders of any public authority bearing
on the safety of persons or property or their protection from damages, injury or
loss.
17
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
23.4 In any emergency affecting the safety of persons or property, the
Contractor shall act to prevent threatened damage, injury or loss, and, if such
emergency is not the fault of the Contractor, shall be entitled to an equitable
adjustment in the Contract Price and the Contract Time.
ARTICLE 24. INSURANCE
24.1 Contractor's Insurance
24.1.1 The Contractor shall procure and maintain insurance as set
forth in Paragraph 24.1.3 below which will protect the Contractor from claims
arising out of the Contractor's operations under this contract including claims
against the Contractor arising out of operations performed for the Contractor by
Subcontractors. Insurance shall be secured from an insurer currently authorized
to do business in the state in which the Work is located. Insurance coverage
shall be at limits specified in the Contract Documents. Insurance shall be
maintained continuously from the commencement of the Work until final payment
and thereafter to the extent coverage following final payment is required by the
Contract Documents.
24.1.2 Certificates of insurance shall be filed with the Owner prior
to commencement of the Work. The Certificate of Insurance shall provide that
there will be no cancellation of coverage without thirty (30) days prior written
notice to the Owner. If any reduction of coverage occurs, the Contractor shall
furnish the Owner with information regarding such reduction as soon as
reasonably possible.
24.1.3 The Contractor shall maintain the following insurance:
Workers' Compensation and Employers Liability Insurance in the amount of
[**].
General Liability Insurance under either a Comprehensive General Liability
or Commercial General Liability policy providing insurance for Bodily
Injury and Property Damage Liability and including coverage for:
Personal Injury Liability in the amount of [**].
Automobile Bodily Injury and Property Damage Liability Insurance including
coverage, for hired and non-owned automobiles in the amount of [**].
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24.2 Owners Liability Insurance
24.2.1 The Owner shall secure and maintain liability insurance to
protect the Owner. The Owner, at its option may purchase and maintain additional
liability insurance to protect the Owner against claims arising out of
performance of the Work under the Contract. The Contractor shall not be
responsible for purchasing liability insurance for the Owner.
24.3 Property Insurance
24.3.1 Unless otherwise provided by supplement or addendum to this
Contract, the Owner shall, prior to commencement of the Work, secure and
maintain property insurance in the amount of the original contract price from an
insurer authorized to do business in the state in which the Work is located. The
amount of insurance shall be adjusted, from time to time, to reflect
modifications in the Contract Price. This property insurance shall be maintained
until the work has been completed and accepted by the Owner and final payment
has been made as provided in this Contract. Property insurance shall cover the
Owner, Contractor, Subcontractors and Sub-subcontractors for their interest in
the Work.
24.3.1.1 Property insurance shall be provided on a broad or all-risk
policy form and shall insure against the perils of fire and extended coverage
and for other physical loss or damage including coverage for theft, vandalism,
malicious mischief, collapse, debris removal (including demolition occasioned by
enforcement of any applicable legal requirements) and shall also cover
reasonable compensation for Architect's services and expenses required because
of such insured loss. The insurance will also cover offsite and transit
exposures, Insurance for loss caused by flood, surface waters and earthquake
shall not be required unless otherwise provided in the Contract and the Owner
shall bear the responsibility for such loss.
24.3.1.2 If the Owner does not intend to purchase the required
property insurance, the Owner shall inform the Contractor in writing prior to
commencement of the Work. The Contractor may then obtain insurance which will
protect the interests of the Contractor, Subcontractors and Sub-subcontractors
in the Work, and by appropriate Change Order the cost thereof shall be charged
to the Owner. If the Contractor is damaged by the failure of the Owner to
purchase or maintain insurance as described above, without so notifying the
Contractor then the Owner shall bear all costs attributable thereto.
24.3.1.3 If property insurance deductibles are identified in the
Contract Documents, the Contractor shall pay costs not covered because of such
deductibles. If the Owner or insurer increases the required deductibles above
the amounts so identified, the Owner shall be responsible for payment of the
additional
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costs not covered because of such increased deductibles. If deductibles are not
identified in the Contract Documents, the Owner shall pay costs not covered
because of deductibles.
24.3.1.4 Prior to the first date on which any risk of an exposure to
loss may occur, the Owner shall provide the Contractor with a complete copy of
each policy that includes insurance coverages required by this Paragraph 24.3.
The policy shall contain a provision that it will not be cancelled unless thirty
(30) days prior written notice has been given to the Contractor.
24.3.2 Loss of Use Insurance. At the Owner's option, the Owner may
secure insurance to insure the Owner against loss of use of the Owner's property
due to fire or other hazards, however caused. The Owner waives all rights of
action against the Contractor for loss of use of the Owner's property, including
consequential losses due to fire or other hazards, however caused.
24.3.3 Boiler and Machinery Insurance. Owner-procured Boiler and
Machinery insurance (if required by the Contract Documents) shall specifically
cover specified insured objects during installation and until final acceptance
by the Owner. This insurance shall Insure the Interests of the Owner,
Contractor. Subcontractors, and Sub-subcontractors in the specified work.
24.3.4 If the Contractor makes a timely written request that insurance
for risks and perils other than those required herein be included in the
property insurance policy, the Owner shall use its best efforts to secure
pricing for such insurance coverage. If the price is acceptable to the
Contractor, the cost of such added coverage shall be charged to the Contractor
by appropriate Change Order.
24.3.5 If the Owner insures other real or personal properties near the
work site, by property insurance under policies separate from those in during
the Project, or if after final payment. property insurance is provided on the
completed Project through a policy or policies other than those insuring the
Project during the construction period, the Owner shall waive all rights in
accordance with the terms of Subparagraph 24.3.6 for damages caused by perils
covered by this separate property insurance. All separate policies shall provide
this waiver of subrogation by endorsement.
24.3.6 Waivers of Subrogation. The Owner and Contractor waive all
rights against each other and any of their Subcontractors, Sub-subcontractors,
agents and employees for damages caused by perils (and to the extent of
insurance for such perils) covered by property insurance obtained pursuant to
this Subcontract or other property insurance applicable to the Work, except such
rights as they have to proceeds of such insurance held by the Owner as
fiduciary. The Owner or the Contractor, as appropriate, shall require
Subcontractors and Sub-subcontractors to
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provide similar waivers (written where legally required for validity) each in
favor of all other parties enumerated in this subparagraph 24.3.6. The policies
shall provide such waivers of subrogation by endorsement if an endorsement is
required.
24.3.7 A loss insured under Owner's property insurance shall be
adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary
for the insurers, as their interests may appear, subject to requirements of any
applicable mortgagee clause. Written notice of any proposed settlement or
adjustment shall be timely sent to the Contractor. The Contractor shall pay
Subcontractors their just shares of insurance proceeds received by the
Contractor, and shall require subcontractors to make payments to their
Sub-subcontractors in a similar manner.
24.3.8 The Owner shall have no right to partial occupancy or use and
the same shall not commence until the insurance company providing property
insurance has consented to such partial occupancy or use. The Owner and the
Contractor shall take reasonable steps to obtain consent of the Insurance
company and shall not take action with respect to partial occupancy or use that
would cause cancellation, lapse or reduction of the required property insurance.
ARTICLE 25. ASSIGNMENT
Neither party shall assign the Contract without the written consent of the other
party, such consent not to be unreasonably withheld. This section shall not
apply to the subcontracting by the Contractor or Owner of any portion of the
Work.
ARTICLE 26. This Article intentionally deleted.
ARTICLE 27. SUBCONTRACTS
Nothing contained In the Contract Documents shall create any contractual
relationship between any Subcontractor and the Owner, unless otherwise indicated
in the Scope of Work.
ARTICLE 28. This Article intentionally deleted.
ARTICLE 29. ARBITRATION
29.1 Prior to seeking resolution of disputes by arbitration as described in this
Article 29, resolution of any controversy, claim or dispute shall be sought in
discussions between senior executives of both the Owner and Contractor. In the
event resolution cannot be achieved within ten (10) days in the manner described
above, resolution of any controversy or claim arising out of or relating to this
Contract or its alleged breach which cannot be resolved as described above shall
be settled by arbitration in accordance with the Construction Industry Rules of
the American Arbitration
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Association in effect on the date of the Contract, and judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction.
Arbitration will be held in Augusta, Maine.
29.2 Should any other party arbitrate a claim or dispute by or against the Owner
involving similar issues of law or fact arising out of this Contract, the Owner
and Contractor consent to consolidation of such arbitration with any arbitration
brought under this Contract. The Owner agrees to include a similar clause in any
contracts with such other parties so as to require consent to such consolidation
from them.
ARTICLE 30. GOVERNING LAW
The Contract shall be governed by the law of Massachusetts without regard to
conflicts or principles of law.
ARTICLE 31. NOTICE
Any notice required by this Contract to be given shall be in writing and shall
be delivered during normal business hours or mailed first class postage prepaid.
If notice is to be given to the Owner or the Contractor, it shall be sent to the
postal address shown in the signature block at the end of the Contract, or to
such other address as either party may designate for itself by notice to the
other. Notice shall be effective upon personal delivery or five (5) calendar
days after the date of mailing.
ARTICLE 32. MISCELLANEOUS PROVISIONS
The following general provisions shall apply to this Contract:
32.1 This Contract contains the entire agreement between the parties, and
supersedes all prior or contemporaneous written or oral communications.
32.2 This Contract may not be changed or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of such
change or termination is sought. No breach of any agreement, warranty or
representation shall be deemed waived unless expressly waived in writing by the
party who might assert such breach.
32.3 This Contract may be executed in several counterparts, each of which shall
be an original, but all of which together shall constitute one and the same
agreement.
32.4 Waiver by one party of the performance of any covenant, condition or
promise of the other party shall not invalidate this Contract, nor shall it be
considered to be a waiver by such party of any other covenant, condition or
promise contained herein.
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The waiver of either or both parties of the time for performing any act shall
not be construed as a waiver of any other required to be performed at a later
date.
32.5 Each person executing this Contract represents that the execution of this
Contract has been duly authorized by the party on whose behalf the person is
executing the Contract and that such person is authorized to execute the
Contract on behalf of such party.
32.6 If any party hereto commences an action or arbitration proceeding to
interpret or enforce this Contract or any provision hereof, the prevailing party
shall be entitled to an award of costs and attorneys' fees in addition to all
other amounts awarded by the court or arbitrator.
32.7 The terms, covenants and conditions of this Contract shall be binding upon
and shall inure to the benefit of the successors and permitted assigns of the
respective parties to this Contract.
32.8 If any provision of this Contract is determined to be illegal or
unenforceable for any reason, the same shall be severed from the Contract and
the remainder of the Contract shall be given full force and effect.
32.9 Time is of the essence of this Contract and each and every one of its
provisions.
32.10 All exhibits attached to the Contract are incorporated as if set forth in
full.
Dated: 2/4/97 Dated: 2/4/97
------------------------ ---------------------------
OWNER: CONTRACTOR
By:/s/ Xxxxxx Xxxxxxxxxx By: /s/ Xxxxxx Xxxxxxxxxx
---------------------------- -------------------------------
(name) (name)
Title: President, FiveCom, Inc. Title: Vice President
as Manager of FiveCom LLC,
as Manager of FiveCom of Maine
c/o FiveCom, Inc.
000 Xxxxxx Xxxx Xxxx, Xxxxx 000 00 Xxxxxxx Xxx.
------------------------------- -----------------------------------
(Address) (Address)
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
---------------------------------- ----------------------------------
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Schedule A
----------
Contract Documents
------------------
1. This Contract (including General Conditions)
2. Schedule A - List of Contract Documents
3. Schedule B - Contractor Scope of Work
4. Schedule C - Project Schedule
5. Schedule D - Terms of Payment and Liquidated Damages
24
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Schedule B
----------
SCOPE OF WORK
FiveCom of Maine LLC Project from
[**]
I. ADSS Fiber Optic Cable Installation:
Contractor shall furnish equipment, labor, and supervision to completely
install according to specifications provided, approximately [**].
Owner shall furnish all design and material including, but not limited to:
- ADSS cable
- ADSS attachment hardware
- ADSS pole connecting hardware
Owner shall accomplish all make-ready work including but not limited to
installing new poles, new guys, and appurtenances such that upon delivery
of the ADSS cable and hardware installation can begin.
In the event that materials or permits are not in place on the dates
indicated in the Schedule contained in Schedule C, Contractor and Owner
shall be given the opportunity to negotiate either (i) an extension to the
Contract Time pursuant to Article 16 or (ii) an adjustment to the Contract
Price to meet the same scheduled completion date.
II. Fiber Cable Splicing and Testing:
----------------------------------
Owner shall provide Contractor with all required specifications (copy
attached to this Schedule) for splicing and testing the fiber cable,
including the actual splice location points. Contractor shall be
responsible for hiring, subject to Owner's approval, a qualified,
reputable splicing contractor. The Contractor shall be responsible for
managing, coordinating, and providing access for the Subcontractor. The
Owner shall be responsible for all Quality Assurance/Quality Control, and
ensuring Subcontractor performance is in conformance with specifications.
25
Schedule B
SCOPE OF WORK
Page 2
Contractor shall provide Owner with all required documentation for testing
each splice at each location according to the specification provided in
RFQ 97A05-EL.
Final testing of the cable, from end to end, with results meeting the
specifications provided, shall be the evidence that Substantial Completion
has been achieved.
26
Schedule C
----------
PROJECT SCHEDULE
CONTRACTOR understands that time is of the essence in the completion of this
contract. CONTRACTOR is committed to completing its construction activities in
accordance with the attached schedule dated 1/15/97 with a Substantial
Completion Date of March 28, 1997.
Final Completion will be accomplished soon as possible following Substantial
Completion.
27
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Schedule D
----------
TERMS OF PAYMENT AND LIQUIDATED DAMAGES
D.1 Terms of Payment - Owner shall pay Contractor for the work performed in
accordance with the provisions of Article 14 of the Contract. Contractor shall
invoice Owner for all labor, supervision, and equipment supplied by Contractor
(excluding snow removal costs) on a time and material basis less Contractor's
Fixed fee which has been negotiated at [**]. Upon achievement of Substantial
Completion of the Project, Contractor shall issue it's Final Invoice to Owner
for the final cost & incurred plus Contractor's fee which is detailed in the
following table. Owner shall reimburse Contractor for the fee less any amounts
required to be paid by Contractor to Owner for Liquidated Damages pursuant to
Article 16.4 of the Contract and the following paragraph D.2.
Owner shall pay Contractor for the work performed by the splicing and testing
Subcontractor in accordance with the provisions of Article 14 of the Contract.
Contractor shall invoice Owner for all services of the splicing and testing
Subcontractor at cost plus Contractor's administration fee of [**].
Estimated Contract Price Breakdown
----------------------------------
Labor, Field Supervision [**]
Equipment [**]
Subtotal [**]
CONTRACTOR Fixed Fee [**]
Estimated Contract Price* [**]
* Excludes Snow Removal and Splicing and Testing Subcontractor - Snow
removal costs, when incurred, shall be invoiced separately and at
Contractor's actual costs less fee. Such snow removal costs shall not be
calculated in the Contract Price. Splicing and testing Subcontractor shall
be invoiced separately and at Contractor's actual costs plus [**] fee,
currently estimated (total) cost is [**].
28
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
D.2 Liquidated Damages for Failure to Achieve Substantial Completion
In the event Contractor fails to achieve Substantial Completion by the
Substantial Completion Date (March 28, 1997) described in Schedule C (as
modified pursuant to the provisions of Article 1.6 of the Contract), resulting
from the fault or neglect of Contractor, Contractor shall pay to Owner as
Liquidated Damages, but not as penalty, the amount of [**].
Limitation of Liability for Liquidated Damages
In no event shall Contractor's liability for liquidated damages for Failure to
Achieve Substantial Completion exceed Contractor's Fixed Fee of[**]. Liquidated
Damages shall be Owner's sole remedy by Contractor for Failure to Achieve
Substantial Completion. No other penalties, liabilities, or obligations will be
incurred by CONTRACTOR.
29
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
February 27, 1997
Xx. Xxxxxx Colantanio
Manager, FiveCom LLC
000 Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
RE: CHANGE ORDER #1 TO THE "AGREEMENT BETWEEN FIVECOM LLC AND E/PRO
ENGINEERING AND ENVIRONMENTAL CONSULTING TO [**]
EXECUTED ON 2/4/97
----------------------------------------------------------------
Dear Mr. Colantanio:
* Change Order #1 is written to cover the rodding and installation of
innerduct and loose tube fiber for the underground portion of the Project
from [**].
* All terms and conditions of the original contract will apply. Schedule E
"Schedule, Scope of Work and Terms of Payment" for this portion of the
Project.
If you are in agreement with this Change Order, please countersign where
indicated and return to my attention. Should you need to discuss any of the
specifics of this Change Order, please contact me at (000) 000-0000.
Sincerely,
FIVECOM LLC E/PRO
----------- -----
/s/ Xxxxxx Xxxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------- -------------------------------
Signature: Signature:
Title: Manager Title: Vice President
Address 000 Xxxxxx Xxxx Xxxx Address: 00 Xxxxxxx Xxxxxx
Xxxxx 000 Xxxxxxx, Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
02154
30
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Schedule E
----------
FiveCom of Maine LLC Project from
[**]
SCHEDULE, SCOPE OF WORK, AND TERMS OF PAYMENT
E.1 Schedule
a) Contractor understands that time is of the essence in completion of
this Contract. Contractor is committed to completing the activities
in accordance with the attached schedule dated 2/28/97 with a
Substantial Completion date of March 28, 1997. The Owner understands
that work may be hampered by weather conditions or ductbank
groundwater conditions that are beyond the Contractor's control and
agrees to the conditions set forth in E.2.c.
Final completion will be accomplished as soon as possible following
Substantial Completion.
E.2 Scope of Work
a) Contractor shall provide equipment, labor and [illegible] completely
install according to [illegible] provided approximately [**].
Contractor shall leave the end coiled in the basement. Owner will
install and terminate in the building.
b) Owner shall furnish all design and material including, but not
limited to:
Actual [illegible] tube fiber optic cable locations
Design and Procurement of all equipment required at [**].
Innerduct and all associated hardware.
Loose tube fiber optic cable and all associated termination
equipment.
c) In the event that weather conditions and/or water conditions in
underground duct banks prohibit construction activities. Contractor
and owner shall be given the opportunity to negotiate either (I) an
extension to the Contract Time pursuant to Article 16 or (II) if
possible, an adjustment to the Contract price to meet the same
scheduled completion date.
31
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
d) Contractor shall be responsible for hiring on a time-and-materials
basis, subject to the Owner's approval, a qualified, reputable
[illegible] and innerduct installation Subcontractor. The Owner's
[illegible] representative (MaineCom) shall be responsible for
coordinating and providing access for the Subcontractor.
e) Owner shall provide Contractor with all required specifications for
splicing and testing the fiber cable, including the actual
[illegible] location points. Contractor shall secure White Mountain
Cable on a time and material basis for splicing and testing. The
Contractor shall be responsible for managing and coordinating the
Subcontractor's activities. The Owner shall make all necessary
arrangements for providing White Mountain Cable access to substation
and buildings. The Owner shall be responsible for all Quality
Assurance/Quality Control and ensuring Subcontractor performance is
in conformance with specifications.
E.3 Terms of Payment Owner shall pay Contractor for the work performed in
accordance with the provisions of Article 14 of the Contract. Contractor shall
invoice Owner for all labor, supervision, and equipment supplied by Contractor
on a time and material basis less Contractor's fixed fee which has been
negotiated at [**]. Upon achievement of Substantial Completion of the [**].
Contractor shall issue [illegible] invoice to Owner for the final [illegible]
plus Contractor's fee which is detailed in the following table.
Owner shall pay Contractor for the work performed by the rodding and [illegible]
installation and the [illegible] and [illegible] Subcontractors in accordance
with the provisions of Article 14 of the Contract. Contractor shall invoice
Owner for all services of the Subcontractors at cost plus Contractor's
administration fee of [**].
32
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Estimated Contract Price Breakdown
----------------------------------
Labor, Field Supervision [**]
Equipment [**]
Subtotal [**]
CONTRACTOR Fixed Fee [**]
Estimated Contract Price* (excluding subcontractors) [**]
*Excludes Rodding and Innerduct Installation, and Splicing and Testing
Subcontractors fees. Subcontractors shall be retained on a time-and-materials
basis and [illegible] at Contractor's actual costs plus [**] fee. Currently
estimated (total) Subcontractor's cost are:
Rodding and Installation Subcontractor [**]
Splicing and Testing Subcontractor [**]
[**] Fee [**]
Estimated Subcontractor Total [**]
00
XXX XXXX XXXXX
[MAP]
34
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
{**]
35
